Motion,Ex Parte: Thomas Bennigson, The New York Institute For Special Education, The Salvation Army, A New York Corporation, Leger Des Heils (Salvation Army Netherlands), Jewish Guild For The Blind, Hadassah, The Women'S Zionist Organization Of America, Inc., Selfhelp Community Services, Inc., The Fresh Air Fund, The Jewish Board Of Family And Children'S Services, Inc., Oxfam America, Vera Proske, Ana Cavatore, Tamara Proske, Facundo Proske, Francisco Proske, Maria Proske, Maria Mercedez Albizu v. The Solomon R. Guggenheim Foundation

On January 20, 2023 a Motion,Ex Parte was filed involving a dispute between Ana Cavatore, Facundo Proske, Francisco Proske, Hadassah, The Women'S Zionist Organization Of America, Inc., Jewish Guild For The Blind, Leger Des Heils, Maria Mercedez Albizu, Maria Proske, Oxfam America, Selfhelp Community Services, Inc., Tamara Proske, The Fresh Air Fund, The Jewish Board Of Family And Children'S Services, Inc., The New York Institute For Special Education, The Salvation Army, A New York Corporation, Thomas Bennigson, Vera Proske, and The Solomon R. Guggenheim Foundation, for Commercial - Other - Commercial Division in the District Court of New York County.

Preview
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

THOMAS BENNIGSON, THE NEW YORK INSTITUTE
FOR SPECIAL EDUCATION, THE SALVATION
ARMY, A NEW YORK CORPORATION, LEGER DES
HEILS (SALVATION ARMY NETHERLANDS),
JEWISH GUILD FOR THE BLIND, HADASSAH, THE Index No. 650416/2023
WOMEN’S ZIONIST ORGANIZATION OF AMERICA,
INC., SELFHELP COMMUNITY SERVICES, INC., THE Hon. Andrew Borrok
FRESH AIR FUND, THE JEWISH BOARD OF FAMILY Part 53
AND CHILDREN’S SERVICES, INC., OXFAM
AMERICA, VERA PROSKE, ANA CAVATORE, Mot. Seq. No. ___
TAMARA PROSKE, FACUNDO PROSKE, FRANCISCO
PROSKE, MARÍA PROSKE and MARÍA MERCEDEZ
ALBIZU, ORAL ARGUMENT
REQUESTED
Plaintiffs,

- against -

THE SOLOMON R. GUGGENHEIM FOUNDATION,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S
MOTION TO DISMISS THE COMPLAINT

DAVIS POLK & WARDWELL LLP
Antonio J. Perez-Marques
Caroline Stern
450 Lexington Avenue
New York, New York 10017
Tel: (212) 450-4000
antonio.perez@davispolk.com
caroline.stern@davispolk.com

Counsel for The Solomon R. Guggenheim
Foundation

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .....................................................................................................1

BACKGROUND .............................................................................................................................4

A. The Adlers in Germany ................................................................................................4

B. The Adlers Shift Assets Outside of Germany Before 1930 .........................................4

C. The Adlers Flee Germany in June 1938.......................................................................5

D. Adler Sells the Painting to Thannhauser in October 1938 ...........................................5

E. The Adler Family Maintains Assets Outside Germany After the Sale ........................6

F. The Adlers Emigrate to Argentina and File Claims for Emigration Costs Without
Reference to the Painting .............................................................................................7

G. After the Sale, Adler’s Daughter Entrusts a Painting to Thannhauser for Safekeeping
and Relies on His Assistance in Her Post-War Restitution Efforts .............................7

H. Thannhauser’s Donation of the Painting to the Guggenheim in the 1960s Is
Published on the Cover of The New York Times..........................................................8

I. The Guggenheim Contacts the Adlers Before Accessioning the Painting...................8

J. The Guggenheim Accessions the Painting, Displays It Publicly, and Repeatedly
Publishes Its Provenance..............................................................................................9

K. Deaths of All Relevant Witnesses................................................................................9

L. Plaintiffs Initiate Correspondence with the Guggenheim in 2017 ...............................9

ARGUMENT .................................................................................................................................10

I. PLAINTIFFS FAIL TO ALLEGE A RIGHT TO POSSESSION OF THE PAINTING,
REQUIRING DISMISSAL OF THEIR CLAIMS FOR REPLEVIN AND
CONVERSION. .............................................................................................................10

A. Plaintiffs Cannot Claim a Right to Possession of the Painting, Having Conceded
That It Was Sold and Alleging No Basis on Which to Void the Sale........................10

B. Plaintiffs Fail to Allege Duress. .................................................................................12

1. Plaintiffs Have Not Alleged That Adler’s Sale of the Painting Was the Product of
a Wrongful Threat Caused by Thannhauser. .........................................................13

2. Plaintiffs Have Not Alleged Preclusion of Adler’s Exercise of Free Will. ...........15

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II. DISMISSAL IS ALSO INDEPENDENTLY REQUIRED BECAUSE THE SALE
WAS SUBSEQUENTLY RATIFIED. ..........................................................................16

III. PLAINTIFFS’ CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS...17

IV. PLAINTIFFS’ CLAIMS ARE BARRED BY LACHES. .............................................17

A. Plaintiffs’ Delay of 85 Years Is Unreasonable...........................................................18

B. Plaintiffs’ Delay Has Prejudiced the Guggenheim. ...................................................21

V. PLAINTIFFS’ UNJUST ENRICHMENT AND DECLARATORY JUDGMENT
CLAIMS MUST BE DISMISSED. ...............................................................................22

CONCLUSION ..............................................................................................................................23

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TABLE OF AUTHORITIES

PAGE(S)
CASES

2 Broadway LLC v. Credit Suisse First Bos. Mortg. Cap. LLC,
2001 WL 410074 (S.D.N.Y. Apr. 23, 2001) .................................................................... 14-15

Adrian Fam. Partners I, L.P. v. ExxonMobil Corp.,
23 Misc. 3d 1120(A), 2007 WL 6370971 (Sup. Ct. Westchester Cnty. June 11, 2007),
aff’d, 61 A.D.3d 901 (2d Dep’t 2009),
leave to appeal denied, 13 N.Y.3d 703 (2009) ................................................................. 12, 14

Bakalar v. Vavra,
819 F. Supp. 2d 293 (S.D.N.Y. 2011),
aff’d, 500 F. App’x 6 (2d Cir. 2012) ................................................................................ 18, 19

Bank Leumi Tr. Co. of New York v. D’Evori Int’l, Inc.,
163 A.D.2d 26 (1st Dep’t 1990) ............................................................................................. 17

Beltway 7 & Properties, Ltd. v. Blackrock Realty Advisers, Inc.,
167 A.D.3d 100 (1st Dep’t 2018) ........................................................................................... 15

Bethlehem Steel Corp. v. Solow,
63 A.D.2d 611 (1st Dep’t 1978) ............................................................................................. 15

Biondi v. Beekman Hill House Apartment Corp.,
257 A.D.2d 76 (1st Dep’t 1999),
aff’d, 94 N.Y.2d 659 (2000) ................................................................................................... 10

Boyer v. Whitestone Lumber Corp.,
23 Misc. 3d 1114(A), 2009 WL 1067395 (Sup. Ct. Nassau Cnty. Mar. 12, 2009) ................ 14

Bradco Homes, Inc. v. Gellert,
223 A.D.2d 857 (3d Dep’t 1996) ............................................................................................ 15

Caniglia v. Chicago Trib.-New York News Syndicate, Inc.,
204 A.D.2d 233 (1st Dep’t 1994) ........................................................................................... 10

Centre Lane Partners III, L.P. v. Nature’s Bounty Co.,
193 A.D.3d 498 (1st Dep’t 2021) ........................................................................................... 22

Corsello v. Verizon New York, Inc.,
18 N.Y.3d 777 (2012) ............................................................................................................. 22

iii

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Edison Stone Corp. v. 42nd St. Dev. Corp.,
145 A.D.2d 249 (1st Dep’t 1989) ............................................................................... 13, 14, 17

Fallon v. McKeon,
230 A.D.2d 629 (1st Dep’t 1996) ........................................................................................... 22

Greek Orthodox Patriarchate of Jerusalem v. Christie’s Inc.,
1999 WL 673347 (S.D.N.Y. Aug. 30, 1999) ......................................................................... 18

Held v. Macy’s, Inc.,
25 Misc. 3d 1219(A) 2009 WL 3465945 (Sup. Ct. Westchester Cnty. Oct. 19, 2009),
judgment entered, 2009 WL 6829463 (Sup. Ct. Westchester Cnty. Nov. 6, 2009) ......... 22-23

Joseph P. Carroll Ltd. v. Ping-Shen,
140 A.D.3d 544 (1st Dep’t 2016) ........................................................................................... 11

Koninklijke Lederfabriek Oisterwijk N.V. v. Chase Nat’l Bank of City of N.Y.,
177 Misc. 186, 30 N.Y.S.2d 518 (Sup. Ct. Special Term N.Y. Cnty. 1941),
aff’d, 263 A.D. 815 (1st Dep’t 1941),
reargument denied, 263 A.D. 857 (1st Dep’t 1942) ............................................................... 16

Leader v. Dinkler Mgmt. Corp.,
26 A.D.2d 683 (2d Dep’t 1966),
aff’d, 20 N.Y.2d 393 (1967) ................................................................................................... 17

Mandel v. Liebman,
303 N.Y. 88 (1951) ................................................................................................................. 15

Morgenthow & Latham v. Bank of New York Co., Inc.,
305 A.D.2d 74 (1st Dep’t 2003) ............................................................................................. 10

NY Medscan, LLC v. JC-Duggan Inc.,
40 A.D.3d 536 (1st Dep’t 2007) ............................................................................................. 10

Orix Credit All., Inc. v. Hanover,
182 A.D.2d 419 (1st Dep’t 1992) ........................................................................................... 14

Pappas v. Tzolis,
20 N.Y.3d 228 (2012) ....................................................................................................... 10-11

In re Peters,
34 A.D.3d 29 (1st Dep’t 2006) ....................................................................................... passim

Philippine Am. Lace Corp. v. 236 W. 40th St. Corp.,
32 A.D.3d 782 (1st Dep’t 2006) ................................................................................. 17, 18, 20

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Philips S. Beach, LLC v. ZC Specialty Ins. Co.,
55 A.D.3d 493 (1st Dep’t 2008) ............................................................................................. 16

Republic of Turkey v. Christie’s Inc. et al.,
2023 WL 2395412 (2d Cir. Mar. 8, 2023) ................................................................. 19-20, 21

Stewart M. Muller Const. Co. v. New York Tel. Co.,
40 N.Y.2d 955 (1976) ............................................................................................................. 12

VKK Corp. v. Nat’l Football League,
244 F.3d 114 (2d Cir. 2001) ................................................................................................... 16

Wertheimer v. Cirker’s Hayes Storage Warehouse, Inc.,
300 A.D.2d 117 (1st Dep’t 2002) ......................................................................... 18, 19, 20-21

WFB Telecomm., Inc. v. NYNEX Corp.,
188 A.D.2d 257 (1st Dep’t 1992) ........................................................................................... 10

Zuckerman v. Metro. Museum of Art,
307 F. Supp. 3d 304 (S.D.N.Y. 2018),
aff’d on other grounds, 928 F.3d 186 (2d Cir. 2019),
cert. denied, 140 S. Ct. 1269 (2020) ............................................................................... passim

STATUTES & RULES
Holocaust Expropriated Art Recovery Act of 2016,
Pub. L. No. 114-308, 130 Stat. 1524 .......................................................................................17
CPLR 214(3) ..................................................................................................................................17
CPLR 3211 ................................................................................................................................. 1, 4

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Defendant The Solomon R. Guggenheim Foundation (the “Guggenheim”) respectfully

submits this memorandum of law in support of its motion to dismiss Plaintiffs’ Complaint

pursuant to CPLR 3211(a)(1) and (7).1

PRELIMINARY STATEMENT

This Action seeks, 85 years after the fact, to void the 1938 sale of a Picasso masterpiece,

Woman Ironing (the “Painting”), now owned by the Guggenheim.

Plaintiffs allege that Karl Adler, a wealthy German-Jewish industrialist who fled

Germany in June 1938, sold the Painting to another German Jew, Justin Thannhauser, later that

year in October 1938. There is no allegation that Nazi officials seized or looted the Painting or

played any role in the transaction. Plaintiffs do not dispute that Adler received and retained the

proceeds. Nor do they allege the sale took place in Germany or any area under Nazi control.

There is, moreover, no allegation that Adler ever viewed the sale as improper or illegitimate. To

the contrary, Plaintiffs concede that Adler, and his three children, “believed [the Painting] had

been lawfully acquired by Thannhauser.” Adler died in 1957, Thannhauser in 1976, and Adler’s

children between 1989 and 1994. There is no allegation that Adler, or any of his children, ever

made any effort to recover the Painting or challenge its sale.

Yet, now, eight decades and three generations later, a single descendant of Adler

(Bennigson), joined by indirect beneficiaries of Adler’s estate, has come to the view that Adler’s

understanding that he lawfully sold the Painting was “mistaken[],” and seeks to unwind the sale

and obtain the Painting (or its alleged $100-$200 million value) from the Guggenheim, where it

1
The Complaint (“Compl.”) (NYSCEF Doc. No. 2) is attached as Exhibit A to the
Affirmation of Antonio J. Perez-Marques in support of this motion. “Ex. __” refers to exhibits to
the Affirmation. “¶__” refers to the Complaint. Internal quotation marks and citations are
omitted.

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has been on public display for over half a century. Although they do not identify any legal basis

on which the sale should be voided, Plaintiffs allege that Adler sold the Painting “in a desperate

attempt to raise cash” so that, having already escaped Nazi territory, he could leave Europe

entirely “for his chosen home in South America.” And, although there is no allegation that Adler

himself ever held or expressed such a view, his great-grandson now contends the price Adler

received was, in hindsight, “far below market value.”

On these allegations, Plaintiffs’ claims for replevin, conversion, unjust enrichment, and

declaratory judgment fail on the merits and must be dismissed. No legal basis to void the

“lawful” sale of the Painting is pleaded in the Complaint or supported by the facts alleged. In

fact, the First Department rejected on the merits a similar claim in which family members

sought, decades after the fact, to unwind a sale that the seller himself viewed as lawful, and to

recover a painting that the seller “did not regard … as having been stolen.” In re Peters, 34

A.D.3d 29, 35 (1st Dep’t 2006). The court cautioned that an estate “will not be heard to

speculate, some 70 years after the fact, that [such a painting] might have been misappropriated.”

Id.

In addition, under well-established New York law, a claim for duress cannot be stated

when there is no allegation that the counterparty, Thannhauser, exerted any unlawful threat that

left Adler with no choice but to sell. The Southern District of New York recently applied these

New York law principles to dismiss a strikingly analogous claim concerning the sale of another

Picasso painting in 1938 outside of Nazi Germany, also allegedly to raise emigration funds.

Zuckerman v. Metro. Museum of Art, 307 F. Supp. 3d 304 (S.D.N.Y. 2018), aff’d on other

grounds, 928 F.3d 186 (2d Cir. 2019), cert. denied, 140 S. Ct. 1269 (2020). Neither the need to

raise funds for emigration, nor alleged pressure arising from general economic conditions, nor an

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allegedly low price, suffice to state a claim for replevin or conversion under New York law.

And, even if there had once been a basis to unwind the sale (which there was not), the claims

would nonetheless require dismissal based on Adler’s ratification, having retained the proceeds

without dispute or challenge for the remainder of his life.

This Action also must be dismissed on the independent basis of laches, given the family’s

unreasonable delay in asserting any claim. Indeed, a clearer case for the application of laches

would be difficult to conceive. Adler had full knowledge of the terms and circumstances of the

sale and the identity of the purchaser, who retained the Painting up to his death and repeatedly

arranged for its exhibition. Thannhauser then gifted much of his collection (including the

Painting) to the Guggenheim, as was highlighted in a 1963 front-page article in The New York

Times that featured a photograph of the Painting. Ever since, the Painting has been displayed

nearly continuously at one of the world’s most famous museums, in a gallery marked with the

purchaser’s name—Thannhauser—on the museum’s Fifth Avenue façade. Understandably,

there is no allegation that the Painting’s location was unknown or only recently discovered.

And, as if more were needed, before accessioning the Painting, the Guggenheim proactively

contacted the Adler family in 1974 to inquire as to their prior ownership. The family responded

with their dates of ownership, without raising any concern or complaint. Notably, at that time,

Thannhauser and other potential witnesses were still alive. Since then, the Guggenheim has

repeatedly included the family’s prior ownership in its published catalogues. Plainly, the

family’s delay has been unreasonable, and the Guggenheim has been prejudiced by that delay,

now that all relevant witnesses are deceased and other evidence has been lost. Courts do not

hesitate to find laches on the pleadings where, as here, the unreasonable delay and resulting

prejudice are apparent.

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The Guggenheim recognizes the profound impact of the Holocaust and the importance of

Nazi-era restitution claims and considers such claims with the utmost seriousness. The Adlers

undoubtedly suffered during their flight from the horrors of Nazi Germany and had to pay

substantial sums to leave. Plaintiffs’ allegations, however, fail to state a claim under New York

law. For the reasons set forth herein, the Complaint should be dismissed with prejudice in its

entirety.

BACKGROUND2

A. The Adlers in Germany

Karl Adler (1872-1957) (“Adler”) was a wealthy German-Jewish industrialist who led the

largest leather manufacturer in Europe, Adler & Oppenheimer A.G. (“A&O”). (¶¶1, 29, 58.)

Adler was a major shareholder and served on its Management Board from 1900 until December

1937. (¶¶2, 28, 36.) The Adler and Oppenheimer families owned 86% of the capital stock of

A&O. (¶29.) The Adlers “led a prosperous life in Germany.” (¶2.)

In 1916, Adler purchased Picasso’s Woman Ironing from Heinrich Thannhauser, who

owned a gallery in Germany. (¶30.) Heinrich and his son, Justin Thannhauser (“Thannhauser”),

who later joined the gallery, were both Jewish. (Id.) In or around 1932, Adler tried

unsuccessfully to sell the Painting for $14,000. (¶32.)

B. The Adlers Shift Assets Outside of Germany Before 1930

In 1919—nearly two decades before the sale of the Painting—the Adler and

Oppenheimer families established a corporate holding company, Amsterdamsche

Ledermaatschappij, N.V. (“Almij”), in the Netherlands. (¶31.) The families then moved their

2
Consistent with CPLR 3211, the Guggenheim accepts the allegations in the Complaint
as true for purposes of this motion and relies on certain limited documentary evidence. The
Guggenheim reserves the right to dispute any allegations should this Action proceed.

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A&O shares out of Germany and into Almij, which as of 1938 owned 89% of A&O. (¶37.) The

Adlers’ holdings outside Germany also included, at a minimum, “affiliates in France and

Luxembourg” (¶37), the Netherlands (see infra at 6-7, 15-16), and assets in the United States

(see infra at 15-16).3

Having restructured their conglomerate, the Adlers “believed they had adequately

protected their company interests” from the Nazi regime. (¶37.) This careful planning was to

some extent successful: while the Nazis imposed a flight tax in 1936 (¶40), and assets within

Germany were restricted by 1938 or earlier (¶44), it was not until August 1940—nearly two

years after the sale of the Painting and after Adler had arrived in Argentina—that Deutsche Bank

obtained 75% of A&O stock held by Almij (¶55). There is no allegation as to whether, or when,

Adler’s other assets outside Germany were ever seized.

C. The Adlers Flee Germany in June 1938

Adler and his wife fled Germany on June 29, 1938 (¶42), moving first to the Netherlands

(where Almij was based) and then to France (where they owned an affiliate) and Switzerland.

(¶¶37, 42.)

D. Adler Sells the Painting to Thannhauser in October 1938

On October 29, 1938, four months after leaving Germany, Plaintiffs state that Adler sold

the Painting to Thannhauser, then living in Paris, “to raise cash needed to flee Nazi persecution

and war-threatened Europe for his chosen home in South America.” (¶46.) Plaintiffs do not

allege that (1) the sale took place in Germany or any country under Nazi control, (2) Adler did

3
The Complaint does not purport to comprehensively describe the Adlers’ holdings
outside of Germany at either the time of the sale or when they left Europe.

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not receive or retain the sale proceeds, (3) any Nazi officials directed or had any role in the

transaction, or (4) Nazi authorities seized the Painting or the proceeds from its sale.

Plaintiffs allege that Adler accepted 6,887 Swiss francs (then equivalent to $1,552) for

the Painting, a price they allege was “far below market value.” (Id.)4 Plaintiffs allege the

Painting was insured for greater value when loaned for exhibition. (¶¶65-66.)

Plaintiffs do not allege that Adler viewed the price as inadequate or the sale as

illegitimate. To the contrary, “Adler … believed [the Painting] had been lawfully acquired by

Thannhauser.” (¶58.) Each of his children had the same understanding. (Id.)

Plaintiffs do not allege that Thannhauser exerted any wrongful threat toward Adler.

Instead, Plaintiffs contend Thannhauser was “well-aware” of the family’s “plight” and “must

have known” the price was too low, and insinuate he may have “profit[ed] from their

misfortune.” (¶48.) Thannhauser, however, never sold the Painting: he owned it until his death

and bequeathed it to the Guggenheim. (¶¶68-69.)

E. The Adler Family Maintains Assets Outside Germany After the Sale

Even after the sale of the Painting in 1938, the family’s corporate holdings in the

Netherlands and beyond continued to be a source of wealth for the Adlers. (¶37; see also infra

4
This allegation is a stark departure from Plaintiffs’ position in pre-suit correspondence,
in which Plaintiffs repeatedly asserted a sale price of approximately $7,000. See, e.g., Ex. B at 1
(“Time Line” from Plaintiffs’ counsel (Aug. 3, 2021)).
(Plaintiffs’ 6,887 figure is drawn from a page of a Thannhauser notebook that may or
may not reflect the sale price but clearly does refer to U.S. dollars, as the daughter of
Thannhauser’s business partner, Angela Rosengart, has confirmed. See Ex. C (confirming that
“ll” currency symbol associated with 6,887 figure was Thannhauser’s symbol for U.S. dollars,
not Swiss francs).)
Plaintiffs’ vacillation on the sale price underscores the deficiency of the evidentiary
record resulting from their 85-year delay. Their claims, however, fail as a matter of law even
with the lower price they allege for the first time in this Complaint. See infra at 15.

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Section F; 15-16.) The Adlers and Oppenheimers controlled Almij in the Netherlands, and

affiliates in France and Luxembourg, until August 1940. (¶37.) Plaintiffs allege no facts to

suggest the Adlers lacked access to these or other assets outside Germany at the time of the 1938

sale.

F. The Adlers Emigrate to Argentina and File Claims for Emigration Costs
Without Reference to the Painting

In April 1940, Adler and his wife arrived in Buenos Aires, residing there for the

remainder of their lives. (¶¶5, 52.) It was only after their arrival in Argentina that the

Netherlands or France were invaded or any of Adler’s Dutch business holdings came under

German control. (¶¶55-56.)

In the late 1950s, the Adlers made claims in Germany to recover their emigration costs,

asserting that they “financed a significant portion of their emigration costs” through payments

made by Almij and transfers from a family-owned Dutch corporation, Koninklijke Lederfabriek

Oisterwijk N.V. (“KLO”) in February 1940,5 and had “traveled first class with bath in view of

their excellent financial situation.” See Ex. D at 4, 6, 9 (Compensation Petition (Sept. 25, 1958)

(English translation)). The sale of the Painting is not referenced in their petition. Id.

G. After the Sale, Adler’s Daughter Entrusts a Painting to Thannhauser for
Safekeeping and Relies on His Assistance in Her Post-War Restitution
Efforts

Plaintiffs do not allege that the Adlers lost trust in Thannhauser after the sale. To the

contrary, Plaintiff Bennigson alleged in a prior case that, soon after the sale, Adler’s daughter,

Carlota, entrusted another Picasso painting, Woman in White, to Thannhauser “for safekeeping”

at his Paris home. See Ex. E ¶3 (Cross-Compl., CV04-8333 FMC (AJWx) (C.D. Cal. Dec. 14,

5
This same Adler company, KLO, also transferred hundreds of thousands of dollars to
accounts in New York in the late 1930s. See infra at 15-16.

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2004)). Nazi authorities seized that painting along with works belonging to Thannhauser after

the 1940 invasion of France. Id. In litigation to recover that painting, Bennigson highlighted the

efforts made by Thannhauser, along with his grandmother, to “locate and recover [Woman in

White] after World War II” and relied on a 1958 letter from Thannhauser to Carlota describing

what had happened to the painting. Id. ¶¶3, 10.

H. Thannhauser’s Donation of the Painting to the Guggenheim in the 1960s Is
Published on the Cover of The New York Times

In October 1963, Thannhauser announced that upon his death he would bequeath the

Painting, together with much of his art collection, to the Guggenheim. (¶68.) Thannhauser’s gift

was covered on the front page of The New York Times. See Ex. F at 1 (John Canaday,

“Guggenheim Gets Major Art Works,” N.Y. Times, Oct. 24, 1963). The article featured a

photograph of the Painting, described as likely the “best known single painting” in the collection.

Id. at 2.

I. The Guggenheim Contacts the Adlers Before Accessioning the Painting

In 1974, before the Guggenheim accessioned the Painting into its collection, Guggenheim

trustee Daniel Catton Rich wrote to Adler’s son, Eric, regarding the Painting. See Ex. G (Ltr.

from D. Catton Rich to E. Adler (Sept. 27, 1974)). Rich asked Eric to confirm whether Woman

Ironing “was once in the collection of Karl Adler (Berlin and Amsterdam),” during what period

of time, and “when and from whom Adler acquired the picture and when it left his collection.”

Id.

Eric responded that his parents bought the Painting in 1916 from a gallery in Munich and

kept it until 1939. See Ex. H (Ltr. from E. Adler to D. Catton Rich (Oct. 18, 1974)). Eric’s letter

did not assert any unfairness, illegitimacy, or concern regarding his father’s sale of the Painting.

See id. Plaintiffs concede that Adler’s children, like Adler, understood Thannhauser to have

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lawfully acquired the Painting. (¶58.) At the time of the Guggenheim’s outreach, Thannhauser

was still alive (¶69), and both Eric and his sister Carlota were living at 20 East 76th Street in New

York, less than a mile from the museum, Ex. H.

J. The Guggenheim Accessions the Painting, Displays It Publicly, and
Repeatedly Publishes Its Provenance

The Guggenheim accessioned the Painting in 1978. (¶69.) Since then, the Guggenheim

has repeatedly published its provenance, including references to Adler’s prior ownership. See,

e.g., Ex. I (Excerpts of Catalogues from 1978, 1980, 1992, 2001, 2018). The Painting has been

on near-constant display at the Guggenheim since 1965 (see Ex. J at 45) as part of the “The

Thannhauser Collection.” Plaintiffs do not allege the Painting’s location or ownership was ever

unknown or only recently discovered.

K. Deaths of All Relevant Witnesses

Adler’s wife died in 1946, Adler in 1957, his son Juan Jorge in 1989, his son Eric in

1990, and his daughter Carlota in 1994. (¶¶57-61.) Thannhauser and Rich both died in 1976

(¶69; Ex. K), and Thomas Messer, the Guggenheim Director who facilitated Thannhauser’s gift,

died in 2013 (Ex. L).

L. Plaintiffs Initiate Correspondence with the Guggenheim in 2017

It was not until January 24, 2017 that any member of the Adler family contacted the

Guggenheim to allege any concern regarding the sale of the Painting. (¶72.) Plaintiffs filed their

Complaint on January 20, 2023. Ex. A. The Plaintiffs comprise one descendant (Adler’s great-

grandson, Bennigson) and various indirect beneficiaries of Adler’s estate. None of the Plaintiffs

purports to have direct knowledge of the terms or circumstances of the sale of the Painting.

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ARGUMENT

On a motion to dismiss, “the facts pleaded are presumed to be true and are accorded

every favorable inference. However, allegations consisting of bare legal conclusions, as well as

factual claims inherently incredible or flatly contradicted by documentary evidence are not

entitled to such consideration.” Caniglia v. Chicago Trib.-New York News Syndicate, Inc.,

204 A.D.2d 233, 233-34 (1st Dep’t 1994); see also Morgenthow & Latham v. Bank of New York

Co., Inc., 305 A.D.2d 74, 78 (1st Dep’t 2003). Courts may dismiss claims based on documentary

evidence, including affidavits, letters, and complaints filed in other proceedings. See, e.g.,

Biondi v. Beekman Hill House Apartment Corp., 257 A.D.2d 76, 80-81 (1st Dep’t 1999), aff’d,

94 N.Y.2d 659 (2000); WFB Telecomm., Inc. v. NYNEX Corp., 188 A.D.2d 257, 258-59 (1st

Dep’t 1992).

I. PLAINTIFFS FAIL TO ALLEGE A RIGHT TO POSSESSION OF THE
PAINTING, REQUIRING DISMISSAL OF THEIR CLAIMS FOR REPLEVIN
AND CONVERSION.

A. Plaintiffs Cannot Claim a Right to Possession of the Painting, Having
Conceded That It Was Sold and Alleging No Basis on Which to Void the
Sale.

To state a claim for replevin where, as here, a claim is pursued by an alleged heir,

Plaintiffs must show that (1) their “decedent was entitled to immediate possession of the

property” and (2) the defendant is in current possession of that property. In re Peters, 34 A.D.3d

at 33-34. To state a claim for conversion, a plaintiff must show that (1) it has legal ownership or

an immediate right of possession to a specific thing and (2) the defendant has exercised

unauthorized dominion over the item to the exclusion of the plaintiff’s right. See NY Medscan,

LLC v. JC-Duggan Inc., 40 A.D.3d 536, 537 (1st Dep’t 2007).

Where, as here, a plaintiff concedes that disputed property was sold and fails to identify

any legal basis to void the sale, it has no claims for conversion or replevin. See Pappas v. Tzolis,

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20 N.Y.3d 228, 234 (2012) (dismissing conversion claim where “[defendant] had purchased

plaintiffs’ interests in the LLC” so “there could be no interference with [plaintiffs’] property

rights”); Joseph P. Carroll Ltd. v. Ping-Shen, 140 A.D.3d 544, 544 (1st Dep’t 2016) (affirming

dismissal of replevin and conversion claims where “plaintiff’s own pleadings concede[d] that

plaintiff sold the [p]ainting”).

Plaintiffs here go further, conceding not only that the Painting was sold, but that the seller

viewed that sale as valid and considered the Painting to have been “lawfully acquired by

Thannhauser.” (¶58.) Under binding First Department authority, this concession is

insurmountable. In re Peters, 34 A.D.3d at 36. In Peters, petitioner sought to recover a painting

that had belonged to her husband (Glaser), which her husband’s brother had sold allegedly

without Glaser’s consent in 1936. Id. at 31. Petitioner conceded that, after learning of the

allegedly unauthorized sale, rather than filing a claim, Glaser had sought to repurchase the work

from the buyer. Id. at 36. On this basis, the First Department held that petitioner could not

establish a meritorious cause of action because Glaser, who “had contemporaneous knowledge of

the disposition of the painting and the identity of the person who possessed it, … did not regard

the painting as having been stolen.” Id. at 35. The court found that his later “attempt to

repurchase the painting” was “tantamount to a concession of the possessor’s rightful ownership”

and did “not support petitioner’s theory that [the painting] was stolen.” Id. at 35-36.

Here, the Court need not rely on circumstantial evidence (i.e., an attempted repurchase)

to infer that Adler “did not regard the painting as having been stolen:” the Complaint concedes

that Adler, who, like Glaser, “had contemporaneous knowledge of the disposition of the painting

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and the identity of the person who possessed it,” viewed Thannhauser’s acquisition as lawful.6

And, as in Peters, Plaintiffs do not allege that Adler “[]ever disputed [the sale’s] legitimacy.” Id.

at 36. Having conceded that the Painting was sold in a transaction the seller viewed as lawful,

the seller’s beneficiaries “will not be heard to speculate, some 70 years after the fact, that it

might have been misappropriated and that its … acquisition … by the … defendant was therefore

tainted.” Id. at 35. By their own allegations, Plaintiffs cannot claim a right to possession of the

Painting.

B. Plaintiffs Fail to Allege Duress.

Plaintiffs moreover fail to plead any facts sufficient to void the sale, or even identify any

legal basis on which the sale should be voided. To the extent Plaintiffs purport to plead duress,

the facts alleged do not support application of that doctrine.

A party seeking to avoid a contract based on duress “shoulders a heavy burden.” Adrian

Fam. Partners I, L.P. v. ExxonMobil Corp., 23 Misc. 3d 1120(A), 2007 WL 6370971, at *16

(Sup. Ct. Westchester Cnty. June 11, 2007), aff’d, 61 A.D.3d 901 (2d Dep’t 2009), leave to

appeal denied, 13 N.Y.3d 703 (2009). Such party must show that the disputed transaction was

the product of (1) a wrongful threat caused by the counterparty to the transaction that

(2) precluded the exercise of free will. Stewart M. Muller Const. Co. v. New York Tel. Co., 40

N.Y.2d 955, 956 (1976); Zuckerman, 307 F. Supp. 3d at 318. Plaintiffs’ claims fail in both

respects.

6
Circumstantial evidence would in any event compel the same conclusion. The Adlers’
continued trust in Thannhauser in the ensuing decades (supra at 7-8), coupled with the Adlers’
failure to raise any concern about the sale, even when contacted by the Guggenheim (supra at
8-9), confirms that they did not believe the sale was anything but lawful.

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1. Plaintiffs Have Not Alleged That Adler’s Sale of the Painting Was the Product of
a Wrongful Threat Caused by Thannhauser.

To constitute duress under New York law, the wrongful threat must be caused by the

actions of the counterparty. See, e.g., Edison Stone Corp. v. 42nd St. Dev. Corp., 145 A.D.2d

249, 256 (1st Dep’t 1989). “[F]inancial pressure” is not duress when “exerted by a third party.”

Id.

Applying these principles under New York law, the District Court in Zuckerman

dismissed strikingly analogous Nazi-era restitution claims seeking to void a sale allegedly made

amid economic hardship to raise funds for emigration from Europe. See Zuckerman, 307 F.

Supp. 3d at 319-20. In Zuckerman, plaintiff brought claims for conversion, replevin, and

declaratory judgment against the Metropolitan Museum of Art, alleging that a Picasso painting in

its collection had been sold under duress “for a low price” by its former owners (the

“Leffmanns”) “in the face of the growing Nazi persecution spreading across Europe and into

Italy,” where the Leffmanns were living at the time. Id. at 311-12. In an attempt to “raise as

much cash as possible” for their flight from Italy, the Leffmanns sold the painting to art dealers

in Paris in 1938. Id. at 312. While the court acknowledged the Leffmanns “felt economic

pressure during the undeniably horrific circumsta

Case Info

Judge

Andrew Borrok Track Judge’s New Case

Case No.

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Document Filed Date

March 21, 2023

Case Filing Date

January 20, 2023

County

Parties

Ana Cavatore Plaintiff
Facundo Proske Plaintiff
Francisco Proske Plaintiff
HADASSAH, THE WOMEN'S ZIONIST ORGANIZATION OF AMERICA, INC. Plaintiff
JEWISH GUILD FOR THE BLIND Plaintiff
KAYE, LAWRENCE MICHAEL Attorney for the Plaintiff
LEGER DES HEILS (SALVATION ARMY NETHERLANDS) Plaintiff
Maria Mercedez Albizu Plaintiff
Maria Proske Plaintiff
OXFAM AMERICA Plaintiff
PEREZ-MARQUES, ANTONIO J. Attorney for the Defendant
ROWLAND, DAVID JOHN Attorney for the Plaintiff
SELFHELP COMMUNITY SERVICES, INC. Plaintiff
SPIEGLER, HOWARD NEIL Attorney for the Plaintiff
STERN, CAROLINE B Attorney for the Defendant
Tamara Proske Plaintiff
THE FRESH AIR FUND Plaintiff
THE JEWISH BOARD OF FAMILY AND CHILDREN'S SERVICES, INC. Plaintiff
THE NEW YORK INSTITUTE FOR SPECIAL EDUCATION Plaintiff
THE SALVATION ARMY, A NEW YORK CORPORATION Plaintiff
THE SOLOMON R. GUGGENHEIM FOUNDATION Defendant
Thomas Bennigson Plaintiff
Vera Proske Plaintiff
WEITZ, YAEL MIRIAM Attorney for the Plaintiff

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